United States Court of Appeals for the Federal Circuit

Over the holiday break the United States Court of Appeals for the Federal Circuit, a specialized appellate court with jurisdiction over certain intellectual property matters, issued a significant ruling concerning the criteria that the United States Patent and Trademark Office (USPTO) may use to decide whether to issue a federal trademark registration.  The Lanham Act–the federal law authorizing the issuance of nationwide federal trademarks–excludes from registration eligibility any mark which is “disparaging” to a person or group of people. Many legal experts have wondered how a law that, by its express terms, calls on the government to discriminate based on the viewpoint expressed by a private person can withstand constitutional scrutiny under the First Amendment’s free speech clause.  The Federal Circuit has now ruled that it cannot, holding that the “disparagement” clause requiring denial of a trademark registration is unconstitutional.

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